Opinion Contributor

The DOMA tax

Same-sex marriage is the states’ rights issue of our day. Now that the Supreme Court has weighed in, the battle has shifted to the states, where the question often boils down to this: Should one state’s (or even one court’s) decision to recognize same-sex marriage be imposed on states that oppose it, or should each state be given the freedom to grapple with the question on its own?

This is not merely an abstract debate, replete with high-minded references to federalism and states as laboratories of experimentation. States that demand the freedom to decide this question for themselves are actually imposing their own antigay views on states that support same-sex marriage. In other words, states, like my home state of Pennsylvania, use their defense of marriage acts as both sword and shield.

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These antigay states impose what amounts to a tax on the same-sex couples who have married in the District of Columbia and the 13 states that allow same-sex couples to marry. To understand how this tax works, consider the situation faced by two couples —one different-sex and one same-sex — both married and living in Massachusetts.

Under Massachusetts law, both couples enjoy the same rights and have the same obligations. But they don’t enjoy the same rights and obligations when they cross state lines, and it is the rare couple that never crosses a state line.

Other states will routinely recognize the different-sex couple’s marriage. The same-sex couple can’t count on similar treatment. They will need to have wills, living trusts, powers of attorney, hospital visitation authorizations, and a domestic partnership agreement if they hope to have their relationship recognized in a state that won’t honor their marriage.

Different-sex couples draft some of these same documents, but not to have their relationships recognized. They draft them to alter the default rules regarding inheritance, medical and financial decision-making, and divorce that apply to their marriages throughout the country. Same-sex couples must draft these documents because these default rules don’t apply to their marriages throughout the country.

If the same-sex couple has children — as so many do — additional planning is necessary. If the couple adopted their children, a shared-parenting agreement and powers of attorney might be necessary in case questions arise about whether other states must recognize the adoption. If a lesbian couple conceives through artificial insemination, they can’t necessarily rely on a presumption of parentage to create a legal relationship between the nonbiological mother and the child. As a backup, the nonbiological mother may wish to adopt the child and draft a shared-parenting agreement.

Different-sex couples would never dream of drafting a shared-parenting agreement or powers of attorney with regard to their children. And husbands would be shocked at the suggestion that adoption is necessary to ensure their parent-child relationship is recognized outside their home state.

For same-sex couples, the cost of this DOMA-related planning is significant. To get a partial estimate, a few years ago I asked a law firm in Pittsburgh — where I live and teach — how much it would charge for its role in this planning. The firm, which has experience with legal planning for same-sex couples, responded that the cost would range from $7,000 to $13,500.

This is a significant financial burden for any family. And like a tax, for gay and lesbian families, it is unavoidable. Just consider what happens when a same-sex couple can’t afford to pay the tax. The state government forcibly takes away the legal rights and obligations associated with the couple’s marriage. This is the same thing that happens when a taxpayer can’t pay property taxes. The government steps in to take the property in satisfaction of the tax due. By taking in kind what the government can’t force a same-sex couple to pay in cash, the government is essentially imposing a tax on them.

It is of no consequence that this tax does not aim to raise revenue. Not all taxes serve that purpose. For example, we speak of “taxes” on cigarettes even though the purpose of these taxes is to discourage smoking and reduce smoking-related health and financial costs. At best, cigarette taxes raise revenue only incidentally. We would probably be delighted even if they raised no revenue at all.

Like a cigarette tax — and many other taxes that act as disguised penalties — the purpose of this tax on married same-sex couples is not to raise revenue. Rather, this tax furthers these governments’ interest in discouraging the legal recognition of lesbian and gay families by making that recognition either more expensive or, in the case of those who can’t afford the expense, of limited significance.

This is a civil-rights issue. And as with other civil rights issues in the past, the talk of states’ rights is just a subterfuge. States that refuse to recognize same-sex marriages are not protecting their own rights. Instead, they are doing to others precisely what they complain is being done to them — they are imposing their own views about same-sex marriage on others. Adding insult to injury, they also reach outside their borders to impose a tax on same-sex couples from other states in order to erode the civil rights gains they have achieved elsewhere.

Anthony C. Infanti is associate dean for academic affairs and professor of law at the University of Pittsburgh School of Law.